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1 Jonathan A. Patchen (Cal. Bar No. 237346)
Jonathan.patchen@bakerbotts.com
2 Ariel D. House (Cal. Bar No. 280477)
Ariel.house@bakerbotts.com ELECTRONICALLY
BAKER BOTTS L.L.P.
3
101 California Street, Suite 3600 F I L E D
Superior Court of California,
4 San Francisco, CA 94111 County of San Francisco
Telephone: (415) 291-6200
Fax: (415) 291-6300 12/27/2019
5 Clerk of the Court
BY: ERNALYN BURA
Attorneys for Defendant Deputy Clerk
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Mott’s L.L.P.
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
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11 MOHAMMED RAHMAN, Case No.: CGC-13-532078
12 Plaintiff, DECLARATION OF ARIEL HOUSE IN
SUPPORT OF MOTT’S L.L.P.’S
13 v. OPPOSITION TO PLAINTIFF
MOHAMMED RAHMAN’S MOTION
14 MOTT'S L.L.P., FOR SUMMARY JUDGMENT, OR IN
THE ALTERNATIVE, SUMMARY
15 Defendant. ADJUDICATION
16 Action Filed: June 13, 2013
Action Remanded: September 28, 2018
17 Trial Date: February 10, 2020
18 Hearing:
Date: January 10, 2020
19 Time: 9:30 a.m.
Location: Dept. 302, 400 McAllister Street,
20 San Francisco, CA 94102
Reservation No.: 009180110-01
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28 DECLARATION OF ARIEL HOUSE IN CASE NO.: CGC-13-532078
SUPPORT OF MOTT’S OPPOSITION TO
RAHMAN’S MOTION FOR SUMMARY
JUDGMENT
1 DECLARATION OF ARIEL HOUSE IN SUPPORT OF MOTT’S OPPOSITION
TO RAHMAN’S MOTION FOR SUMMARY JUDGMENT
2
I, Ariel D. House, declare as follows:
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1. I am an attorney at the law firm of Baker Botts LLP, and counsel for Defendant
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Mott’s L.L.P. (“Mott’s” or “Defendant”). I am licensed to practice law in California. This
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declaration is concurrently filed with Defendant Mott’s L.L.P.’s Opposition to Plaintiff Mohammed
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Rahman’s Motion for Summary Judgment, or in the alternative, Summary Adjudication. I have
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personal knowledge of the matters stated herein and, if called as a witness, I could and would testify
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competently thereto, to the best of my knowledge.
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2. Attached as Exhibit A is a true and correct copy of excerpts from the deposition
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transcript of Eric Blackwood. I am informed and believe, and on that basis state, that Mr.
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Blackwood resides in or around Dallas, Texas, which is more than 150 miles from the City and
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County of San Francisco.
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3. Attached as Exhibit B is a true and correct copy of Mott’s Objections and Responses
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to Rahman’s Form Interrogatories.
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4. Attached as Exhibit C is a true and correct copy of Mott’s Objections and Responses
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to Rahman’s Supplemental Interrogatories.
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5. Attached as Exhibit D is a true and correct copy of the deposition transcript of
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Mohammed Rahman.
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6. Attached as Exhibit E is a true and correct copy of the District Court’s Remand
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Order, dated September 25, 2018, ECF No. 130.
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7. Attached as Exhibit F is a true and correct copy of the District Court’s Order
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Granting Mott’s Motion for Summary Judgment In Part, dated October 15, 2014, ECF No. 83.
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8. Attached as Exhibit G is a true and correct copy of the Declaration of Mohammed
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Rahman in Support of his Motion for Class Certification, dated August 1, 2014, ECF No. 66–2.
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9. Attached as Exhibit H is a true and correct copy of the expert report of Dr. Keith
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Ugone.
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28 DECLARATION OF ARIEL HOUSE IN CASE NO.: CGC-13-532078
SUPPORT OF MOTT’S OPPOSITION TO
RAHMAN’S MOTION FOR SUMMARY
JUDGMENT
1 I declare the foregoing is true and correct under the penalty of perjury.
2 Executed on December 27, 2019, in Tucson, Arizona.
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4 ________________________
5 Ariel D. House
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28 DECLARATION OF ARIEL HOUSE IN CASE NO.: CGC-13-532078
SUPPORT OF MOTT’S OPPOSITION TO
RAHMAN’S MOTION FOR SUMMARY
JUDGMENT
Exhibit A
Page 1
1 UNITED STATES DISTRICT COURT
2 FOR THE NORTHERN DISTRICT OF CALIFORNIA
3 MOHAMMED RAHMAN, on behalf )
of himself and all others )
4 Similarly situated, )
)
5 Plaintiffs, )
VS ) CASE NO.
6 ) 4:13-cv-03482-SI
MOTT'S LLP and DOES 1 )
7 through 10, )
)
8 Defendants. )
9 *********************************************
10 ORAL VIDEOTAPED DEPOSITION OF
ERIC BLACKWOOD
11 July 15, 2014
12 **********************************************
13
14 ORAL DEPOSITION OF ERIC BLACKWOOD,
15 produced as a witness at the instance of the
16 Plaintiffs, and duly sworn, was taken in the
17 above-styled and numbered cause on the 15th of
18 July, 2014, from 9:07 to 2:52, before Susan S.
19 Klinger, RMR-CRR, CSR in and for the State of
20 Texas and California, reported by stenographic
21 method, at Baker Botts, 2001 Ross Avenue,
22 Dallas, Texas, pursuant to the Federal Rules of
23 Civil Procedure and the provisions stated on
24 the record or attached hereto.
25 Job No. 81814
TSG Reporting - Worldwide 877-702-9580
Page 2
1 A P P E A R A N C E S
2
FOR THE PLAINTIFF(S):
3 Mr. Cody Padgett
Mr. Robert Friedl
4 CAPSTONE LAW
1840 Century Park East
5 Los Angeles, California 90067
6 FOR THE DEFENDANT(S):
Mr. Ryan Bangert
7 BAKER BOTTS
2001 Ross Avenue
8 Dallas, Texas 75201
9
ALSO PRESENT:
10
Mr. Art Swanson
11 Mr. Mark Wolf, videographer
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TSG Reporting - Worldwide 877-702-9580
Page 3
1 I N D E X
2 WITNESS PAGE
3 ERIC BLACKWOOD
4 EXAMINATION BY MR. PADGETT 5
5 EXAMINATION BY MR. BANGERT 150
6
7
8 E X H I B I T S
9
10 No. Page Description
11 Exhibit 1 6 Request for Production
12 Exhibit 2 22 Ugone Expert Report
13 Exhibit 3 23 Exhibit 5
14 Exhibit 4 41 Labels
15 Exhibit 5 68 Interrogatory responses
16 Exhibit 6 81 Strategic Positioning
17 Assessment 2009 Planning
18 Exhibit 7 98 Strategic Brand
19 Positioning, 11/12/09
20 Exhibit 8 116 Graphics Redesign, 3/09
21 Exhibit 9 140 Email, 6/5/12
22 Exhibit 10 147 Email, 9/23/09
23 Exhibit 11 162 Brand Health & Equity
24 Tracking
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TSG Reporting - Worldwide 877-702-9580
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1 VIDEOGRAPHER: This is the start of
2 tape labeled number 1 of the videotaped
3 deposition of Eric Blackwood in the matter
4 of Mohammed Rahman versus Mott's, LLP, in
5 the court, the U.S. District Court for the
6 Northern District of California, Number
7 4:13-CV-03482-SI. This deposition is being
8 held at 2001 Ross Avenue, Dallas, Texas on
9 July the 15th, 2014 at approximately 9:08
10 a.m.
11 My name is Mark Wolf. I am the
12 legal video specialist from TSG Reporting,
13 Inc. headquartered at 747 Third Avenue,
14 New York, New York. The court reporter is
15 Susan Klinger in association with TSG
16 Reporting. Will counsel please introduce
17 yourself?
18 MR. PADGETT: Cody Padgett, Capstone
19 Law, counsel for plaintiff, Mohammed Ramah.
20 MR. FRIEDL: Robert Friedl for
21 plaintiff.
22 MR. BANGERT: Ryan Bangert, Baker
23 Botts law firm for defendants. With me is
24 Art Swanson, associate general counsel at
25 Dr Pepper Snapple Group.
TSG Reporting - Worldwide 877-702-9580
Page 5
1 ERIC BLACKWOOD,
2 having been first duly sworn testified as
3 follows:
4 EXAMINATION
5 BY MR. PADGETT:
6 Q. Would you please state your name for
7 the record and spell your last name?
8 A. Sure. It's Eric Blackwood,
9 B-L-A-C-K-W-O-O-D.
10 Q. And you understand you're testifying
11 under oath today?
12 A. Yes, I do.
13 Q. Is there any reason you can't give
14 your best testimony today?
15 A. No.
16 Q. And do you understand that you are
17 testifying as a designee of Mott's, LLP?
18 A. Yes, I do.
19 Q. Have you had your deposition taken
20 before?
21 A. No, I have not.
22 Q. Okay. Just to give you some -- some
23 background, you want to make sure to allow me
24 to finish my question before you respond.
25 Gestures don't work for our friend over here.
TSG Reporting - Worldwide 877-702-9580
Page 66
1 feedback on the way they view it. At the end
2 of the day, it's a small group of people, so
3 generally the groups are anywhere from six to
4 eight people. They can last for -- usually
5 anywhere from three to five different groups
6 per city, and we can do anywhere from one to
7 four or five cities.
8 So at the end, it's not a large
9 group of people that are making those
10 determinations, but it's helping us see how
11 moms particularly perceive our product.
12 In addition to that, we will also
13 ask them about competitive products. So
14 products like Welch's Grape Juice or products
15 even like a juice drink, for example, to
16 understand how they are seeing the competitive
17 product, similar to how they are looking at
18 Mott's to help us gauge what they are actually
19 perceiving on the label.
20 Q. What are the companies that do that
21 for you, if you have outside companies that do
22 that?
23 A. It's -- it's a variety. Frank
24 Magid -- I think it's Frank N. Magid is the
25 name of the company, they do a lot -- or they
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Page 69
1 Q. If you'll do me a favor and turn to
2 page 4. This Interrogatory Number 3, Mott's
3 response states that some labels on Mott's 100%
4 Apple Juice products contain the words "no
5 sugar added" at the beginning of the class
6 period in 2009. Are those products that we
7 just discussed before the break?
8 A. Yes, they are.
9 Q. And then the next sentence following
10 says that in September 2010, Mott's issued
11 labels for some Mott's 100% Apple Juice
12 products that did not contain the words "no
13 sugar added." Are those the products that we
14 just discussed?
15 A. Yes, they are.
16 Q. And then lastly, on various dates in
17 2010 -- I'm sorry, in various dates in 2012,
18 Mott's issued labels for some Mott's 100% Apple
19 Juice products that contained the words "no
20 sugar added." Are those the products we just
21 discussed?
22 A. Yes, they are.
23 Q. If you'll do me a favor and turn to
24 page 13. The top of the page, the word
25 "response," Mott's states that as indicated on
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Page 70
1 the Mott's 100% Apple Juice label, Mott's 100%
2 Apple Juice contains three ingredients: water,
3 apple juice concentrate and Vitamin C. That's
4 true, to the best of your knowledge?
5 A. To the best of my knowledge, yes.
6 Q. That's how all Mott's 100% Apple
7 Juice sold to the public was formulated?
8 A. To the best of my knowledge, yes.
9 MR. BANGERT: I would just add that
10 he did not verify that particular response.
11 MR. PADGETT: Okay. Noted.
12 Q. Has Mott's ever sold a single
13 strength juice product with those ingredients
14 that was called something other than Mott's
15 100% Apple Juice?
16 A. I'm sorry, I don't think I
17 understand the question.
18 Q. The actual liquid inside the bottle,
19 did we discuss all the packaging types for that
20 liquid?
21 A. For the 100 percent apple juice?
22 Q. Right.
23 A. There are other packaging types, but
24 we discussed the predominant packaging types.
25 Q. There are other package types for
TSG Reporting - Worldwide 877-702-9580
Page 80
1 Q. Did Mott's 100% Apple Juice ever
2 have sugar added to it?
3 A. During the class period, I'm not
4 aware of any -- of any.
5 Q. What about prior to the class
6 period?
7 A. I don't think I can speak to that.
8 Q. To the best of your knowledge, has
9 there ever been sugar added to Mott's 100%
10 Apple Juice?
11 A. I mean, Mott's has been around since
12 1842. It would be impossible for me to know
13 the answer to that question. It has
14 transitioned from a variety of different
15 owners, records, some 1842 records. It's
16 impossible for me to possibly know that.
17 Q. That's fair. During the time of the
18 class period, has there ever been sugar added
19 to Mott's 100% Apple Juice?
20 A. No, there has not.
21 Q. If you will look at the
22 interrogatories again -- again, on page 4,
23 number 2, plaintiffs ask Mott's to describe in
24 detail why the label for Mott's 100% Apple
25 Juice contains the statement "no sugar added."
TSG Reporting - Worldwide 877-702-9580
Page 92
1 record, I want to lodge an objection that
2 this is actually a slide that does not
3 relate to the class product. This is
4 actually relating to a Mott's for Tots
5 product, which is a less sugar product.
6 MR. PADGETT: Noted, thank you.
7 Q. Is Mott's for Tots a reduced sugar
8 product?
9 A. I don't have the definition of a
10 reduced sugar product. It has a -- it has less
11 sugar than 100 percent apple juice does.
12 Q. Is there any type of 100 percent
13 apple juice that has more sugar than -- than
14 normal?
15 A. Any type that Mott's makes or
16 that --
17 Q. That Mott's makes.
18 A. No.
19 Q. How about that someone else makes?
20 A. I don't know sugar contents of other
21 competitors, so it would be hard for me to
22 really know that.
23 Q. During the course of your job, have
24 you discovered any other brands of 100 percent
25 apple juice that contain added sugars?
TSG Reporting - Worldwide 877-702-9580
Page 94
1 C?
2 A. Not that I'm aware of, no.
3 Q. And you haven't come across any of
4 that in the period that you have worked for
5 Mott's or DPSG?
6 A. Not of 100 percent apple juice.
7 Many juice drinks that contain apple juice will
8 have added sugar in them, but not specific to
9 100 percent apple juice.
10 Q. Juice cocktails and things like
11 that?
12 A. Juice cocktails and things like that
13 are similar to that, yes.
14 Q. Will you do me a favor and look at
15 134. The third major bold bullet point down
16 says, "SHST category dollar sales are up 2.8
17 percent. The volume is down 2.4 percent." I'm
18 not a marketing guy, so can you explain to me
19 what -- what that means?
20 A. I don't know this particular acronym
21 because this was, again, prior to kind of how
22 we do business today. This looks and appears
23 to be a measure of -- based on the description
24 is going to be the shelf stable product of some
25 type -- I'm assuming shelf stable juices, based
TSG Reporting - Worldwide 877-702-9580
Page 132
1 Q. You can answer.
2 A. I believe that the data Nielsen has
3 provided us is accurate to the point that they
4 are able to track it. In other words, Nielsen
5 does not cover all channels, does not cover all
6 markets, so there are not -- not everything
7 that was sold in California during this period
8 is on this chart.
9 Q. How does Mott's use Nielsen
10 information?
11 A. Mott's uses Nielsen information to
12 directionally report on a number of different
13 attributes. So sales performance, which is
14 what you see here, as well as things like
15 distribution. We use it to look at pricing in
16 the marketplace. Nielsen shows both our
17 products as well as competitive products, so it
18 allows us to see different selling elements
19 within the marketplace.
20 Q. How do you determine retail prices?
21 A. How do we determine retail prices?
22 We don't determine retail prices. Retailers
23 determine retail prices.
24 Q. How do you determine what retail
25 prices are?
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Page 133
1 A. You mean how do I -- how do I
2 ascertain what the retail price at a particular
3 location was?
4 Q. Right.
5 A. We would pull Nielsen and look. We
6 can't get down to the granularity of a specific
7 location. We can say for this chain, so as an
8 example, for Albertsons during this time,
9 Nielsen has a particular metric that will show
10 us different elements of pricing across
11 Albertsons sometimes for different markets at
12 different times.
13 Q. Does each retailer set its own
14 price?
15 A. Each retailer does set its own
16 price.
17 Q. Okay. Is there any communication
18 with -- with Mott's or DPSG about the retail
19 price?
20 A. We recommend a range of retail
21 prices, but it's out of our control whether
22 they actually use that. They're independent
23 entities. We wish we could control pricing
24 more, but they -- they don't allow us to
25 control pricing.
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Page 152
1 determine the specific types of labels that
2 appear on products that are sold into specific
3 markets at any given point in time?
4 A. No, that wouldn't be possible.
5 Q. Why not?
6 A. Because it's -- the inventory is,
7 etcetera, at the retailer's discretion,
8 products that can be purchased on shelf at a
9 specific time. We just have no tracking or
10 record of it.
11 Q. And do you know whether Mott's has a
12 way of determining which specific consumers
13 bought which specific products -- I'm talking
14 about 100 percent apple juice products -- at
15 any given time in a given market?
16 A. No, we have no way to track that.
17 Q. Who is Mott's competitive set?
18 A. Mott's competitive set is 100
19 percent juice products as well as juice drink
20 products as well as things like juice cocktails
21 that compete in the both shelf stable and
22 refrigerated ready to drink as well as
23 beverages outside of juice products.
24 Q. What is a juice drink product?
25 A. A juice drink product is any product
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Page 154
1 A. No, it is not.
2 Q. Does it include juice drinks?
3 A. It does include juice drinks.
4 Q. Do the words "no sugar added" play
5 any role in distinguishing Mott's 100% Apple
6 Juice from juice drinks?
7 MR. FRIEDL: Objection, lacks
8 foundation, objection as to form.
9 A. It does play a role in
10 distinguishing Mott's 100% Apple Juice from
11 juice drinks.
12 Q. What is that?
13 A. It shows that -- it tells consumers
14 that Mott's 100% Apple Juice comes from real
15 apples, whereas other juice drinks might add
16 sugar to their products.
17 Q. Do juice drinks typically add sugar
18 to their products?
19 A. They tend to. It depends on the
20 product.
21 Q. Is it more often than not?
22 A. More often than not.
23 Q. Does Mott's price its products at
24 the wholesale level based on the "no sugar
25 added" claim?
TSG Reporting - Worldwide 877-702-9580
Exhibit B
1
Van H. Beckwith (pro hac vice)
2 Texas Bar No. 02020150
BAKER BOTTS L.L.P.
3 2001 Ross Avenue, Suite 900
Dallas, Texas 75201
4 Telephone: (214) 953-6500
Facsimile: (214) 953-6503
5 Email: van.beckwith@bakerbotts.com
6 Ariel D. House
California Bar No. 280477
7 BAKER BOTTS L.L.P.
101 California Street, Suite 3600
8 San Francisco, California 94111
Telephone: (415) 291-6200
9 Facsimile: (415) 291-6300
Email: ariel.house@bakerbotts.com
10
Attorneys for Defendant
11 MOTT’S L.L.P.
12
13 SUPERIOR COURT FOR THE STATE OF CALIFORNIA
14 COUNTY OF SAN FRANCISCO
15
MOHAMMED RAHMAN, individually, and CASE NO. CGC-13-532078
16 on behalf of other members of the general
public similarly situated, DEFENDANT MOTT’S LLP’S
17 OBJECTIONS AND RESPONSES TO
Plaintiff, PLAINTIFF MOHAMMED RAHMAN’S
18 FORM INTERROGATORIES, SET ONE
vs.
19 Action Filed: June 13, 2013
MOTT’S L.L.P. Action Remanded: September 28, 2018
20 Trial Date: February 10, 2020
Defendant.
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28 MOTT’S OBJECTIONS AND RESPONSES TO
1 CASE NO: CGC-13-532078
RAHMAN’S FORM INTERROGATORIES
1 Defendant Mott’s LLP (“Mott’s), by and through its undersigned co
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1 Jonathan A. Patchen (Cal. Bar No. 237346) Jonathan.patchen@bakerbotts.com 2 Ariel D. House (Cal. Bar No. 280477) Ariel.house@bakerbotts.com ELECTRONICALLY BAKER BOTTS L.L.P. 3 101 California Street, Suite 3600 F I L E D Superior Court of California, 4 San Francisco, CA 94111 County of San Francisco Telephone: (415) 291-6200 Fax: (415) 291-6300 12/27/2019 5 Clerk of the Court BY: ERNALYN BURA Attorneys for Defendant Deputy Clerk 6 Mott’s L.L.P. 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 MOHAMMED RAHMAN, Case No.: CGC-13-532078 12 Plaintiff, DECLARATION OF ARIEL HOUSE IN SUPPORT OF MOTT’S L.L.P.’S 13 v. OPPOSITION TO PLAINTIFF MOHAMMED RAHMAN’S MOTION 14 MOTT'S L.L.P., FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY 15 Defendant. ADJUDICATION 16 Action Filed: June 13, 2013 Action Remanded: September 28, 2018 17 Trial Date: February 10, 2020 18 Hearing: Date: January 10, 2020 19 Time: 9:30 a.m. Location: Dept. 302, 400 McAllister Street, 20 San Francisco, CA 94102 Reservation No.: 009180110-01 21 22 23 24 25 26 27 28 DECLARATION OF ARIEL HOUSE IN CASE NO.: CGC-13-532078 SUPPORT OF MOTT’S OPPOSITION TO RAHMAN’S MOTION FOR SUMMARY JUDGMENT 1 DECLARATION OF ARIEL HOUSE IN SUPPORT OF MOTT’S OPPOSITION TO RAHMAN’S MOTION FOR SUMMARY JUDGMENT 2 I, Ariel D. House, declare as follows: 3 1. I am an attorney at the law firm of Baker Botts LLP, and counsel for Defendant 4 Mott’s L.L.P. (“Mott’s” or “Defendant”). I am licensed to practice law in California. This 5 declaration is concurrently filed with Defendant Mott’s L.L.P.’s Opposition to Plaintiff Mohammed 6 Rahman’s Motion for Summary Judgment, or in the alternative, Summary Adjudication. I have 7 personal knowledge of the matters stated herein and, if called as a witness, I could and would testify 8 competently thereto, to the best of my knowledge. 9 2. Attached as Exhibit A is a true and correct copy of excerpts from the deposition 10 transcript of Eric Blackwood. I am informed and believe, and on that basis state, that Mr. 11 Blackwood resides in or around Dallas, Texas, which is more than 150 miles from the City and 12 County of San Francisco. 13 3. Attached as Exhibit B is a true and correct copy of Mott’s Objections and Responses 14 to Rahman’s Form Interrogatories. 15 4. Attached as Exhibit C is a true and correct copy of Mott’s Objections and Responses 16 to Rahman’s Supplemental Interrogatories. 17 5. Attached as Exhibit D is a true and correct copy of the deposition transcript of 18 Mohammed Rahman. 19 6. Attached as Exhibit E is a true and correct copy of the District Court’s Remand 20 Order, dated September 25, 2018, ECF No. 130. 21 7. Attached as Exhibit F is a true and correct copy of the District Court’s Order 22 Granting Mott’s Motion for Summary Judgment In Part, dated October 15, 2014, ECF No. 83. 23 8. Attached as Exhibit G is a true and correct copy of the Declaration of Mohammed 24 Rahman in Support of his Motion for Class Certification, dated August 1, 2014, ECF No. 66–2. 25 9. Attached as Exhibit H is a true and correct copy of the expert report of Dr. Keith 26 Ugone. 27 2 28 DECLARATION OF ARIEL HOUSE IN CASE NO.: CGC-13-532078 SUPPORT OF MOTT’S OPPOSITION TO RAHMAN’S MOTION FOR SUMMARY JUDGMENT 1 I declare the foregoing is true and correct under the penalty of perjury. 2 Executed on December 27, 2019, in Tucson, Arizona. 3 4 ________________________ 5 Ariel D. House 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3 28 DECLARATION OF ARIEL HOUSE IN CASE NO.: CGC-13-532078 SUPPORT OF MOTT’S OPPOSITION TO RAHMAN’S MOTION FOR SUMMARY JUDGMENT Exhibit A Page 1 1 UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 MOHAMMED RAHMAN, on behalf ) of himself and all others ) 4 Similarly situated, ) ) 5 Plaintiffs, ) VS ) CASE NO. 6 ) 4:13-cv-03482-SI MOTT'S LLP and DOES 1 ) 7 through 10, ) ) 8 Defendants. ) 9 ********************************************* 10 ORAL VIDEOTAPED DEPOSITION OF ERIC BLACKWOOD 11 July 15, 2014 12 ********************************************** 13 14 ORAL DEPOSITION OF ERIC BLACKWOOD, 15 produced as a witness at the instance of the 16 Plaintiffs, and duly sworn, was taken in the 17 above-styled and numbered cause on the 15th of 18 July, 2014, from 9:07 to 2:52, before Susan S. 19 Klinger, RMR-CRR, CSR in and for the State of 20 Texas and California, reported by stenographic 21 method, at Baker Botts, 2001 Ross Avenue, 22 Dallas, Texas, pursuant to the Federal Rules of 23 Civil Procedure and the provisions stated on 24 the record or attached hereto. 25 Job No. 81814 TSG Reporting - Worldwide 877-702-9580 Page 2 1 A P P E A R A N C E S 2 FOR THE PLAINTIFF(S): 3 Mr. Cody Padgett Mr. Robert Friedl 4 CAPSTONE LAW 1840 Century Park East 5 Los Angeles, California 90067 6 FOR THE DEFENDANT(S): Mr. Ryan Bangert 7 BAKER BOTTS 2001 Ross Avenue 8 Dallas, Texas 75201 9 ALSO PRESENT: 10 Mr. Art Swanson 11 Mr. Mark Wolf, videographer 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TSG Reporting - Worldwide 877-702-9580 Page 3 1 I N D E X 2 WITNESS PAGE 3 ERIC BLACKWOOD 4 EXAMINATION BY MR. PADGETT 5 5 EXAMINATION BY MR. BANGERT 150 6 7 8 E X H I B I T S 9 10 No. Page Description 11 Exhibit 1 6 Request for Production 12 Exhibit 2 22 Ugone Expert Report 13 Exhibit 3 23 Exhibit 5 14 Exhibit 4 41 Labels 15 Exhibit 5 68 Interrogatory responses 16 Exhibit 6 81 Strategic Positioning 17 Assessment 2009 Planning 18 Exhibit 7 98 Strategic Brand 19 Positioning, 11/12/09 20 Exhibit 8 116 Graphics Redesign, 3/09 21 Exhibit 9 140 Email, 6/5/12 22 Exhibit 10 147 Email, 9/23/09 23 Exhibit 11 162 Brand Health & Equity 24 Tracking 25 TSG Reporting - Worldwide 877-702-9580 Page 4 1 VIDEOGRAPHER: This is the start of 2 tape labeled number 1 of the videotaped 3 deposition of Eric Blackwood in the matter 4 of Mohammed Rahman versus Mott's, LLP, in 5 the court, the U.S. District Court for the 6 Northern District of California, Number 7 4:13-CV-03482-SI. This deposition is being 8 held at 2001 Ross Avenue, Dallas, Texas on 9 July the 15th, 2014 at approximately 9:08 10 a.m. 11 My name is Mark Wolf. I am the 12 legal video specialist from TSG Reporting, 13 Inc. headquartered at 747 Third Avenue, 14 New York, New York. The court reporter is 15 Susan Klinger in association with TSG 16 Reporting. Will counsel please introduce 17 yourself? 18 MR. PADGETT: Cody Padgett, Capstone 19 Law, counsel for plaintiff, Mohammed Ramah. 20 MR. FRIEDL: Robert Friedl for 21 plaintiff. 22 MR. BANGERT: Ryan Bangert, Baker 23 Botts law firm for defendants. With me is 24 Art Swanson, associate general counsel at 25 Dr Pepper Snapple Group. TSG Reporting - Worldwide 877-702-9580 Page 5 1 ERIC BLACKWOOD, 2 having been first duly sworn testified as 3 follows: 4 EXAMINATION 5 BY MR. PADGETT: 6 Q. Would you please state your name for 7 the record and spell your last name? 8 A. Sure. It's Eric Blackwood, 9 B-L-A-C-K-W-O-O-D. 10 Q. And you understand you're testifying 11 under oath today? 12 A. Yes, I do. 13 Q. Is there any reason you can't give 14 your best testimony today? 15 A. No. 16 Q. And do you understand that you are 17 testifying as a designee of Mott's, LLP? 18 A. Yes, I do. 19 Q. Have you had your deposition taken 20 before? 21 A. No, I have not. 22 Q. Okay. Just to give you some -- some 23 background, you want to make sure to allow me 24 to finish my question before you respond. 25 Gestures don't work for our friend over here. TSG Reporting - Worldwide 877-702-9580 Page 66 1 feedback on the way they view it. At the end 2 of the day, it's a small group of people, so 3 generally the groups are anywhere from six to 4 eight people. They can last for -- usually 5 anywhere from three to five different groups 6 per city, and we can do anywhere from one to 7 four or five cities. 8 So at the end, it's not a large 9 group of people that are making those 10 determinations, but it's helping us see how 11 moms particularly perceive our product. 12 In addition to that, we will also 13 ask them about competitive products. So 14 products like Welch's Grape Juice or products 15 even like a juice drink, for example, to 16 understand how they are seeing the competitive 17 product, similar to how they are looking at 18 Mott's to help us gauge what they are actually 19 perceiving on the label. 20 Q. What are the companies that do that 21 for you, if you have outside companies that do 22 that? 23 A. It's -- it's a variety. Frank 24 Magid -- I think it's Frank N. Magid is the 25 name of the company, they do a lot -- or they TSG Reporting - Worldwide 877-702-9580 Page 69 1 Q. If you'll do me a favor and turn to 2 page 4. This Interrogatory Number 3, Mott's 3 response states that some labels on Mott's 100% 4 Apple Juice products contain the words "no 5 sugar added" at the beginning of the class 6 period in 2009. Are those products that we 7 just discussed before the break? 8 A. Yes, they are. 9 Q. And then the next sentence following 10 says that in September 2010, Mott's issued 11 labels for some Mott's 100% Apple Juice 12 products that did not contain the words "no 13 sugar added." Are those the products that we 14 just discussed? 15 A. Yes, they are. 16 Q. And then lastly, on various dates in 17 2010 -- I'm sorry, in various dates in 2012, 18 Mott's issued labels for some Mott's 100% Apple 19 Juice products that contained the words "no 20 sugar added." Are those the products we just 21 discussed? 22 A. Yes, they are. 23 Q. If you'll do me a favor and turn to 24 page 13. The top of the page, the word 25 "response," Mott's states that as indicated on TSG Reporting - Worldwide 877-702-9580 Page 70 1 the Mott's 100% Apple Juice label, Mott's 100% 2 Apple Juice contains three ingredients: water, 3 apple juice concentrate and Vitamin C. That's 4 true, to the best of your knowledge? 5 A. To the best of my knowledge, yes. 6 Q. That's how all Mott's 100% Apple 7 Juice sold to the public was formulated? 8 A. To the best of my knowledge, yes. 9 MR. BANGERT: I would just add that 10 he did not verify that particular response. 11 MR. PADGETT: Okay. Noted. 12 Q. Has Mott's ever sold a single 13 strength juice product with those ingredients 14 that was called something other than Mott's 15 100% Apple Juice? 16 A. I'm sorry, I don't think I 17 understand the question. 18 Q. The actual liquid inside the bottle, 19 did we discuss all the packaging types for that 20 liquid? 21 A. For the 100 percent apple juice? 22 Q. Right. 23 A. There are other packaging types, but 24 we discussed the predominant packaging types. 25 Q. There are other package types for TSG Reporting - Worldwide 877-702-9580 Page 80 1 Q. Did Mott's 100% Apple Juice ever 2 have sugar added to it? 3 A. During the class period, I'm not 4 aware of any -- of any. 5 Q. What about prior to the class 6 period? 7 A. I don't think I can speak to that. 8 Q. To the best of your knowledge, has 9 there ever been sugar added to Mott's 100% 10 Apple Juice? 11 A. I mean, Mott's has been around since 12 1842. It would be impossible for me to know 13 the answer to that question. It has 14 transitioned from a variety of different 15 owners, records, some 1842 records. It's 16 impossible for me to possibly know that. 17 Q. That's fair. During the time of the 18 class period, has there ever been sugar added 19 to Mott's 100% Apple Juice? 20 A. No, there has not. 21 Q. If you will look at the 22 interrogatories again -- again, on page 4, 23 number 2, plaintiffs ask Mott's to describe in 24 detail why the label for Mott's 100% Apple 25 Juice contains the statement "no sugar added." TSG Reporting - Worldwide 877-702-9580 Page 92 1 record, I want to lodge an objection that 2 this is actually a slide that does not 3 relate to the class product. This is 4 actually relating to a Mott's for Tots 5 product, which is a less sugar product. 6 MR. PADGETT: Noted, thank you. 7 Q. Is Mott's for Tots a reduced sugar 8 product? 9 A. I don't have the definition of a 10 reduced sugar product. It has a -- it has less 11 sugar than 100 percent apple juice does. 12 Q. Is there any type of 100 percent 13 apple juice that has more sugar than -- than 14 normal? 15 A. Any type that Mott's makes or 16 that -- 17 Q. That Mott's makes. 18 A. No. 19 Q. How about that someone else makes? 20 A. I don't know sugar contents of other 21 competitors, so it would be hard for me to 22 really know that. 23 Q. During the course of your job, have 24 you discovered any other brands of 100 percent 25 apple juice that contain added sugars? TSG Reporting - Worldwide 877-702-9580 Page 94 1 C? 2 A. Not that I'm aware of, no. 3 Q. And you haven't come across any of 4 that in the period that you have worked for 5 Mott's or DPSG? 6 A. Not of 100 percent apple juice. 7 Many juice drinks that contain apple juice will 8 have added sugar in them, but not specific to 9 100 percent apple juice. 10 Q. Juice cocktails and things like 11 that? 12 A. Juice cocktails and things like that 13 are similar to that, yes. 14 Q. Will you do me a favor and look at 15 134. The third major bold bullet point down 16 says, "SHST category dollar sales are up 2.8 17 percent. The volume is down 2.4 percent." I'm 18 not a marketing guy, so can you explain to me 19 what -- what that means? 20 A. I don't know this particular acronym 21 because this was, again, prior to kind of how 22 we do business today. This looks and appears 23 to be a measure of -- based on the description 24 is going to be the shelf stable product of some 25 type -- I'm assuming shelf stable juices, based TSG Reporting - Worldwide 877-702-9580 Page 132 1 Q. You can answer. 2 A. I believe that the data Nielsen has 3 provided us is accurate to the point that they 4 are able to track it. In other words, Nielsen 5 does not cover all channels, does not cover all 6 markets, so there are not -- not everything 7 that was sold in California during this period 8 is on this chart. 9 Q. How does Mott's use Nielsen 10 information? 11 A. Mott's uses Nielsen information to 12 directionally report on a number of different 13 attributes. So sales performance, which is 14 what you see here, as well as things like 15 distribution. We use it to look at pricing in 16 the marketplace. Nielsen shows both our 17 products as well as competitive products, so it 18 allows us to see different selling elements 19 within the marketplace. 20 Q. How do you determine retail prices? 21 A. How do we determine retail prices? 22 We don't determine retail prices. Retailers 23 determine retail prices. 24 Q. How do you determine what retail 25 prices are? TSG Reporting - Worldwide 877-702-9580 Page 133 1 A. You mean how do I -- how do I 2 ascertain what the retail price at a particular 3 location was? 4 Q. Right. 5 A. We would pull Nielsen and look. We 6 can't get down to the granularity of a specific 7 location. We can say for this chain, so as an 8 example, for Albertsons during this time, 9 Nielsen has a particular metric that will show 10 us different elements of pricing across 11 Albertsons sometimes for different markets at 12 different times. 13 Q. Does each retailer set its own 14 price? 15 A. Each retailer does set its own 16 price. 17 Q. Okay. Is there any communication 18 with -- with Mott's or DPSG about the retail 19 price? 20 A. We recommend a range of retail 21 prices, but it's out of our control whether 22 they actually use that. They're independent 23 entities. We wish we could control pricing 24 more, but they -- they don't allow us to 25 control pricing. TSG Reporting - Worldwide 877-702-9580 Page 152 1 determine the specific types of labels that 2 appear on products that are sold into specific 3 markets at any given point in time? 4 A. No, that wouldn't be possible. 5 Q. Why not? 6 A. Because it's -- the inventory is, 7 etcetera, at the retailer's discretion, 8 products that can be purchased on shelf at a 9 specific time. We just have no tracking or 10 record of it. 11 Q. And do you know whether Mott's has a 12 way of determining which specific consumers 13 bought which specific products -- I'm talking 14 about 100 percent apple juice products -- at 15 any given time in a given market? 16 A. No, we have no way to track that. 17 Q. Who is Mott's competitive set? 18 A. Mott's competitive set is 100 19 percent juice products as well as juice drink 20 products as well as things like juice cocktails 21 that compete in the both shelf stable and 22 refrigerated ready to drink as well as 23 beverages outside of juice products. 24 Q. What is a juice drink product? 25 A. A juice drink product is any product TSG Reporting - Worldwide 877-702-9580 Page 154 1 A. No, it is not. 2 Q. Does it include juice drinks? 3 A. It does include juice drinks. 4 Q. Do the words "no sugar added" play 5 any role in distinguishing Mott's 100% Apple 6 Juice from juice drinks? 7 MR. FRIEDL: Objection, lacks 8 foundation, objection as to form. 9 A. It does play a role in 10 distinguishing Mott's 100% Apple Juice from 11 juice drinks. 12 Q. What is that? 13 A. It shows that -- it tells consumers 14 that Mott's 100% Apple Juice comes from real 15 apples, whereas other juice drinks might add 16 sugar to their products. 17 Q. Do juice drinks typically add sugar 18 to their products? 19 A. They tend to. It depends on the 20 product. 21 Q. Is it more often than not? 22 A. More often than not. 23 Q. Does Mott's price its products at 24 the wholesale level based on the "no sugar 25 added" claim? TSG Reporting - Worldwide 877-702-9580 Exhibit B 1 Van H. Beckwith (pro hac vice) 2 Texas Bar No. 02020150 BAKER BOTTS L.L.P. 3 2001 Ross Avenue, Suite 900 Dallas, Texas 75201 4 Telephone: (214) 953-6500 Facsimile: (214) 953-6503 5 Email: van.beckwith@bakerbotts.com 6 Ariel D. House California Bar No. 280477 7 BAKER BOTTS L.L.P. 101 California Street, Suite 3600 8 San Francisco, California 94111 Telephone: (415) 291-6200 9 Facsimile: (415) 291-6300 Email: ariel.house@bakerbotts.com 10 Attorneys for Defendant 11 MOTT’S L.L.P. 12 13 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 14 COUNTY OF SAN FRANCISCO 15 MOHAMMED RAHMAN, individually, and CASE NO. CGC-13-532078 16 on behalf of other members of the general public similarly situated, DEFENDANT MOTT’S LLP’S 17 OBJECTIONS AND RESPONSES TO Plaintiff, PLAINTIFF MOHAMMED RAHMAN’S 18 FORM INTERROGATORIES, SET ONE vs. 19 Action Filed: June 13, 2013 MOTT’S L.L.P. Action Remanded: September 28, 2018 20 Trial Date: February 10, 2020 Defendant. 21 22 23 24 25 26 27 28 28 MOTT’S OBJECTIONS AND RESPONSES TO 1 CASE NO: CGC-13-532078 RAHMAN’S FORM INTERROGATORIES 1 Defendant Mott’s LLP (“Mott’s), by and through its undersigned co